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The Innocence Commission: an Independent Review Board for Wrongful Convictions

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The Innocence Commission: An Independent Review Board for Wrongful Convictions DAVID HoRAN" INTRODUCTION Convicting the innocent is no less a problem in the United States than in Great Britain. By some estimates, as many as "one out of four defendants accused of a serious crime such as sexual assault" in the United States and "at least one out of 100 of those actually sentenced to death is innocent."' Yet the United States Congress has recently passed legislation making federal habeas corpus remedies for actual innocence more difficult to obtain.' In the same * For the inspiration for this Article, I wish to thank Norval Morris, James Lockyer, and Barry Scheck, as well as Larry Marshall for organizing the National Conference on Wrongful Convictions and the Death Penalty at the Northwestern University School of Law in November 1998, of which this Article is a product. For helpful comments and advice, my thanks to Stephen Bright, Shawn Collins, Patrick Collins, Edward Goemer, Samuel Issacharoff, Ben Rogoff, Stephen Schulhofer, and Lior Strahilevitz. I especially want to thank Steven Duke for providing me with valuable discussions and insights on the problem of convicting the innocent and Leigha Simonton for her support and patience. For invaluable assistance in providing sources, materials, and support, I owe many thanks to Louise Hall and Sir Frederick Crawford of the Criminal Cases Review Commission, James Lockyer and the Association in Defence of the Wrongly Convicted, the British Home Office, and Dean Stephen Yandle and the Yale Law School. I. Richard C. Dieter, Innocence and the Death Penalty: The Increasing Danger of Executing the Innocent 21 (last updated July 1997) <http://www.essential.orgldpiclinn.html>. For a discussion of the estimated ratios of innocent to guilty defendants sentenced to death, see Frank J. Murray, Death-Row Foes.Cite 'Innocents'; But Freeing Some no Proof Others Die Wrongfully, WASH. TIMES, Sept. 12, 1999, at C4. Estimates vary as to the number of wrongful convictions in Great Britain, ranging from the civil liberties group Justice's estimate that "at least fifteen people each year are wrongfully convicted by a jury," to the estimate of the National Association of Probation Officers that "'[f]ive per cent of prisoners serving more than five years protest their innocence and prison staff think that half of them (at least 400) might have been wrongfully convicted."' ROSEMARY PATTENDEN, ENGLISH CRIMINAL APPEALS 1844-1994: APPEALS AGAINST CONVICTION AND SENTENCE IN ENGLAND AND WALES 393 (1996) (footnotes omitted). One British academic and former senior prison service official estimates that some 1,300 prison inmates are innocent in Britain. Mohammed Ilyas, Academic's Casefor Innocent Inmates, BIRMINGHAM POST (Eng.), Apr. 11, 1998, at 4 (reporting a study by Dr. David Wilson of the University of Central England); see alsoDuncan Campbell, Guilty Until ProvedInnocent, GUARDIAN (London), Aug. 19, 1998, at 17 (reporting that released wrongfully convicted prisoner Paddy Nicholls estimated "that there could be as many as 2,000 people wrongly serving prison sentences in British prisons," but also suggesting that "[i]t is impossible to give even an approximate figure"). 2. See Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified as amended in scattered sections of 28 U.S.C.); id. 28 U.S.C. § 2244(b)(2)(B) (restricting access to federal habeas corpus on a second or successive NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 20 period, the British Parliament passed legislation establishing the Criminal Cases Review Commission (CCRC), "an independent body investigating suspected miscarriages of justice in England, Wales and Northern Ireland."3 petition); id. § 2254(e)(2)(B) (restricting access to evidentiary hearings in federal habeas courts). 3. Criminal Appeal Act, 1995, ch. 35, §§ 8-25 (Eng.); CRIMINAL CASES REVIEW COMMISSION [hereinafter CCRC], 1997-98 ANNUAL REPORT 4 (1998) (on file with the author). The British Parliament has also passed an act establishing the Scottish Criminal Cases Review Commission (SCCRC), patterned closely after the British CCRC. Crime and Punishment (Scotland) Act, 1997, ch. 48, § 25 (Scot.); Jenny Booth, At the Centre of the Courts, SCOTSMAN, May 3, 1999, at 22 (describing SCCRC chairperson Sheila McLean and the task facing the new review body); Jenny Booth, Dewer Names Six Members of Criminal Case Review Group, SCOTSMAN, Dec. 4, 1998, at 10; Jenny Booth, Scots System Set Up to PerpetuateMistakes Made, SCOTSMAN, July 31, 1998, at 6 (reporting criticisms of provisions of the Crime and Punishment (Scotland) Act as SCCRC prepares to begin work in April 1999); Severin Carrell, Crime Watchdog's Remit Expanded, SCOTSMAN, Mar. 24, 1999, at 6 (discussing announced plans for expanded powers for the SCCRC); Lessons of the Bentley Acquittal, SCOTSMAN, July 31, 1998, at 18 (arguing for improvements to the planned SCCRC); Alan Miller, Miscarriage Law Back in Melting Pot, SCOTSMAN, Feb. 12, 1998, at 19 (same); Scottish Office, Appointment of Chair of the Scottish Criminal Cases Review Commission, June 26, 1998 (visited Oct. 5, 1999) <http:llwww.scotland.gov.ukinews/releas98lI/prl 330.html> (describing the arrangements for the SCCRC); Scottish Office, ChairmanSought for the Scottish Criminal Cases Review Commission, Mar. 5, 1998 (visited Oct. 5, 1999) <http://www.scotland.gov.uk/ news/releas98/pr0435.html> (same); Ian Smith, Commission Ready To Investigate Cases of Doubtful Justice, SCOTSMAN, Apr. 2, 1999, at 4 (discussing the launch of the SCCRC). For an overview of the Scottish criminal justice system and post-conviction review, see generally LINDSAY FARMER, CRIMINAL LAW, TRADITION AND LEGAL ORDER: CRIME AND THE GENIUS OF SCOTS LAW, 1747 TO PRESENT (1997); R.A.A. MCCALL & DAVID SHELDON, SCOTS CRIMINAL LAW (1992); LORD MCCLUsKEY, CRIMINAL APPEALS (1992); PETER YOUNG, CRIME AND CRIMINAL JUSTICE IN SCOTLAND (1997); A Guide to Scots Law (visited Oct. 5, 1999) <http://www.law.gla.ac.uk/scot-guiderToC.HTML>; Scottish Court Service (visited Oct. 5, 1999) <http://www.scotcourts.gov.uk/html/scsl.html>. Similar bodies are being considered in Canada and Australia. See Adversary System Undermines Justice, ABIX, Feb. 4, 1999, available in 1999 WL 2250833 (abstract from The Australian, Feb. 4, 1999, at 13) ("Australia now needs an independent commission to reinvestigate dubious verdicts akin to England's Criminal Cases Review Commission."); Michelle MacAfee, Criminal Code Revamp Welcomed, GLOBE & MAIL (Toronto), Aug. 27, 1998, at A8 (reporting the call for an independent commission to review wrongful convictions in Canada); Jill Mahoney, Top Supreme Court Candidate Avoids Issue of Appointments; McLachlin DiscussesAccountability at Bar Association Meeting, GLOBE & MAIL (Toronto), Aug. 26, 1999, at A4 (reporting that Justice Minister Anne "McLellan said she is committed to reforming the law that deals with allegations of wrongful convictions and will announce changes by the end of the year."); DEPARTMENT OF JUSTICE, ADDRESSING MISCARRIAGES OF JUSTICE: REFORM POSSIBILmES FOR SECTION 690OFTHE CIMINAL CODE(A CONSULTATION PAPER) 9-12 (1998) (Can.) (hereinafter CONSULTATION PAPER] (reporting the consideration of reforms establishing a CCRC-like review body in Canada and Australia); Department of Justice, Addressing Miscarriagesof Justice: Reform Possibilitiesfor Section 690 of the CriminalCode (A Consultation Paper) 9-12 (1998) <http://canada.justice.gc.ca/en/cons/amj/coverre.html> (same); Terry O'Gorman, Remedying Miscarriagesof Justice-A New Approach Is Overdue (visited Oct. 5, 1999) <http://web.logicworld.com.au/-miket/level l/ogorman.html> (Australian 2000] THE INNOCENCE COMMISSION Nowhere has the problem of convicting the innocent been more apparent recently in the United States than in Illinois, where political leaders and public sentiment are reeling from the release and subsequent exoneration and executive pardon of several innocent men-most notably Anthony Porter- from the state's death row.4 Illinois has now exonerated and released more solicitor's paper presented at the 6th International Criminal Law Congress, Session 8, Melbourne, Australia, October 9-13, 1996, tracing the development of the British CCRC and arguing for a similar body in Australia). For an overview of the Australian criminal justice system and post-conviction review, see generally MARK FINDLAY ET AL, AUSTRAUAN CRIMINAL JUSTICE (1994); CoLiN HOWARD, CRIMINAL LAW (4th ed. 1982); DEBORAH SWEENEY & NEL WILLIAMS, COMMONWEALTH CRIMINAL LAW (1990); Australia's Legal System (visited Oct. 5, 1999) <http://www.law.gov .au/auslegalsys/auslegalsys.html>; Attorney-General's Department, Criminal Law Division (visited Oct. 5, 1999) <http://www.law.gov.au/aghomellegalpol/crld/crld.htm>. For an overview of the Canadian criminal justice system and post-conviction review, see generally Rt. Hon. A. Kim Campbell, Post-Conviction Review in the Canadian Criminal Justice System, 28 SUFFOLK U. L. REV. 609 (1994); Department of Justice, Applications to the Minister of Justice for a Conviction Review Under Section 690 of the Criminal Code (visited Feb. 5, 1999) <http://canada.justice.gc.ca/Publications/Infoeducation/sect690/index_en.html >; Department of Justice, Canada's Court System (visited Oct. 5, 1999) <http://canada.justice.gc.ca/Public ations/lnfo education/CCS/indexen.htm>; Department of Justice, Canada's System ofJustice (visited Oct. 5, 1999) <http://canada.justice.gc.ca/Publications/Infoeducation/CSJ/index_ien.
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